New test on abortion rights

Posted Thu, June 27th, 2013 3:50 pm by Lyle Denniston

Edging closer to a new review of state power to restrict the right to abortion, the Supreme Court on Thursday added to its docket a case from Oklahoma, while indicating that it would not move ahead until it gets some answers from that state’s Supreme Court. If the case does go forward to a full-scale ruling by the Justices, it could be a test of state authority to ban abortions performed with medicines, rather than surgery.

The Court’s action comes at a time when a wave of new challenges to abortion has coursed through many of the nation’s state legislatures, leading to a number of new state laws that are considerably more restrictive of the constitutional right to end pregnancies that the Court first established in Roe v. Wade in 1973. That intense new campaign was highlighted just this week by a raucous session in the Texas state legislature over such a new law.

The case of Cline v. Oklahoma Coalition for Reproductive Justice (docket 12-1094) turns on the constitutionality of a 2011 state law that regulates doctors’ prescription of drugs that have been approved for public use by the Food and Drug Administration, and that have the medical effect of ending a pregnancy — that is, a “medical abortion.” Its challengers say it would ban virtually all such abortions, but that is disputed by the backers of the law. The Supreme Court on Thursday posed a series of questions to the state court in an attempt to find out who is right.

The order issued by the Justices was explicit in noting that the case had been granted review — a move that ordinarily would mean the case would now start going through the usual procedures and come up for a hearing in the new Term that starts in October.

The order was unusual in two ways: it applied a procedure allowed under Oklahoma law for asking the state courts for a legal interpretation of a state law, and it said that the Justices would hold off on any “further proceedings” until after the state Supreme Court has responded. Presumably, that means that the normal briefing and hearing schedule would be suspended in the meantime.

Once the Court receives the state court’s answers, it would still have the option of dismissing the case without a ruling. However, one of the reasons that presumably led it to accept the case in the meantime is that the backers of the Oklahoma law argued that there is a split among lower courts on the validity of such restrictions on abortions by medication. The law’s supporters contend that the Oklahoma Supreme Court ruling striking down the law conflicts directly with a Sixth Circuit Court ruling upholding a similar Ohio law.

At the center of the new case are medical procedures, most often applied in inducing an abortion early in a woman’s pregnancy. Instead of the more invasive procedure of surgery, the use of drugs involves simple process of taking one oral dose of a medicine, and two days later taking a second dose of a related drug. Within two weeks, the combination is expected to end the pregnancy. Doctors prescribe this process for ending a pregnancy up through the forty-ninth day — seven weeks — after a woman’s last menstrual period.

The first drug in that protocol is RU-486, an often-controversial preparation (also known by the names mifepristone or Mifeprex). Under the FDA-approved labeling requirement for that drug, it is to be taken first, at a health facility. The second dose, also taken at a health facility, is of the drug misoprostol. The patient must return to the health facility to allow a doctor to check to see if the combination worked.

But doctors have found ways to induce medical abortions through a combination of the drugs that is said to be safer, less costly, and more efficient. These notably simpler protocols allow the combination to be used for two weeks longer into the pregnancy — that is, sixty-three days or nine weeks. Since the development of these alternative approaches, almost all medical abortions are done this way, it appears.

But those alternatives are considered to be “off label” — that is, applications of drugs in a way not specified on the FDA-approved label. It is not uncommon, in medical practice, for doctors to prescribe “off-label” uses.

That is where the Oklahoma law passed in 2011 now focuses. It mandated that doctors may only prescribe RU-486 or any other “abortion-inducing drug” as authorized by the protocol spelled out on the FDA-approved label. In practical effect, that law has at least the effect of confining medical abortions to forty-nine days, not sixty-three. But the Oklahoma law was challenged by abortion clinics with the argument that it outlaws nearly all medical abortions, because of the prevalence of the off-label protocols.

Another drug involved in this case, and also used off-label, is methotrexate; it, too, has been approved by the FDA. Doctors with some frequency give their patients this drug to end an ectopic pregnancy. Sometimes called “tubal pregnancy,” an ectopic pregnancy involves the implantation of the embryo outside the uterus; this causes serious complications for the patient, and such pregnancies seldom can successfully continue to term. Surgical termination of such pregnancies is considered very risky, and sometimes is fatal.

The Oklahoma law, the challengers noted, mentions the use of the specified drugs only when they are prescribed to bring about abortions. The challengers contended that the law severely restricts pregnant women’s right to abortion.

A state judge struck down the law, agreeing with the challengers’ arguments that the off-label use was standard medical practice, and the law’s restrictions on such applications served no purpose other than to ban abortions. The judge blocked the law’s enforcement.

When state officials took the case on to the Oklahoma Supreme Court, they argued that the law does not forbid doctors from using the two-drug combination for an abortion, and that the law did not forbid the use of methotrexate to end ectopic pregnancies.

Instead of ruling on those specific issues, the state Supreme Court in a brief opinion ruled that the state law conflicted with Supreme Court rulings protecting a woman’s constitutional right to end a pregnancy.

In agreeing to put the case on its docket Thursday, the Supreme Court asked the state tribunal to tell the Justices whether the law bars the use of misoprostol to induce abortions, including its use together with mifepristone in the FDA-approved protocol, and whether it bars the use of methotrexate to treat ectopic pregnancies.

The answers to those questions would appear to require the state court to examine closely the medical evidence that both sides will presumably be attempting to bring forth, and also to determine just what the state legislature had in mind in enacting the measure.

The Supreme Court did not provide a timetable for the Oklahoma court to respond.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.